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10th Circuit decision has little impact on Roadless Rule in Alaska

The 10th U.S. Circuit Court of Appeals’ recent decision to uphold the Roadless Rule did little to settle the issue in Alaska.

Originally passed in 2001, the rule excludes nearly 60 million acres, or about 30 percent, of National Forest from road building, road reconstruction and timber harvests.

“The intent of this final rule is to provide lasting protection for inventoried roadless areas within the National Forest System in the context of multiple-use management,” according to a 2001 Department of Agriculture report.

The recent unsuccessful appeal was brought by the state of Wyoming. The circuit court filed its decision on Oct. 21

The 10th Circuit Court ruling cleans up a lot of the conflict surrounding the Roadless Rule, said Lindsey Ketchel, Executive Director of Southeast Alaska Conservation Council.

“It simplifies the USDA’s internal review process,” she said.

The precedent set by this ruling will empower the Regional Forester’s office to bring forth both mining and energy developments, Ketchel said.

“Now it is all about applying the rule and making it work,” she said.

Ketchel points toward confusion over what types of development might be limited by the rule. She has said the rule would not derail Southeast Alaska hydroelectric projects.

“I feel like this issue became much more political than on-the-ground reality. Recent court decisions have taken the politics out of the equation,” she said. “These are really important administrative protections that ensure we have strong salmon runs and subsistence hunting and balancing that with rural economic needs.”

Sen. Lisa Murkowski, R-Alaska, sees the rule as a hindrance, not a protection.

“I am disappointed in the court’s ruling. This decision will further strangle the economic opportunities in Southeast Alaska and throughout the West,” Murkowski said. “Congress may need to intercede to put America back on track to a more balanced and rational approach for managing our federal lands,” she said. Murkowski is working with Sen. Mark Begich, D-Alaska, to exempt Alaska from the rule. Begich and Murkowski have co-sponsored Senate Bill 1357 to exempt National Forest System land in the state of Alaska from the Roadless Conservation Rule. Murkowski also co-signed S.B. 1087, the Wilderness and Roadless Area Release Act of 2011, which was originally sponsored by Sen. John Barrasso, R-Wyo.

The state of Alaska is taking on the Roadless Rule in a one-two punch of legislation and litigation.

The state of Alaska currently has two cases filed to exempt the Tongass National Forest from the rule or end the rule all together. One case is in the 9th U.S. Circuit Court of Appeals to reinstate a Roadless Rule exemption for the Tongass. The Tongass was exempted from the rule from 2003 to March of 2011, when District Court Judge John Sedwick overturned the exemption.

The other case claims the Roadless Rule violates the Alaska National Interest Lands Conservation Act and the Tongass Land Management Plan of 2008.

Tom Lenhart, assistant attorney general of Alaska, said the recent 10th Circuit ruling has some crossover with the state of Alaska’s cases, however the state’s cases are unique enough that Lenhart doesn’t see the ruling as a setback.

“So we are going forward with the two cases,” he said. Lenhart is the state’s lead attorney on these cases.

“We would prefer to have the exemption that was in place reinstated,” Chris Maisch, director of the Division of Forestry and state forester said.

Maisch said the state’s major concern with the rule is it might hinder the implementation of the Tongass Land Management Plan of 2008. Specifically, Phase 1 of the plan calls for the harvest of 100 million board feet of lumber, “much of that is in roadless areas,” he said. “Without exemption it will be difficult to achieve phase one and impossible to achieve phase two and three.”

This results in ramifications for communities in southeast Alaska, Maisch said.

Exempting Alaska from the rule makes it much more flexible as to where timber harvests comes from, Maisch said. It allows us to spread out the harvest over a much larger area. Also, he said that the economics of a second growth harvest are improved with a developed transportation system in place.